Filing Fees & Attorney Fees

The employer must pay an ACWIA fee of $1,500 (for more than 25 workers)/$750 (fewer workers)
The employer may not request reimbursement from the employee.

ACWIA Filing Fee Exemptions

This fee is waived for certain employers and situations, including…

  • Institutions of higher education and affiliated nonprofit entities
  • Nonprofit and governmental research organizations
  • Second H-1B extension requests
  • Amended petitions with no extension
  • Primary or secondary institutions

Fraud Filing Fee

  • Applies to new petitions and
    change of employer petitions
  • $500 fraud fee may be paid by the employer, employee or a third party

Other H-1B Filing Fees

The base fee of $320 can be paid by the employer or employee.

The premium processing fee of
$1,000 can also be paid by either party.

Who Can Pay Attorneys Fees

  • Unclear whether the employee is allowed to pay the attorney’s fee
  • One interpretation: employee can pay so long as her wage exceeds the prevailing wage by amount of attorneys fees
  • A third party payor allowed
  • Challenges for public schools

Premium Processing

  • $1,000 filing fee
  • USCIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame
  • Not necessary to obtain a visa number, since the filing of the petition secures the petition’s place in line for a visa number

Consular Processing
for an H-1B Visa

If an F-1 student cannot change status in the U.S., then the student must obtain an H-1B visa at a U.S. consulate abroad before working in H-1B status

When Consular Processing is Required

USCIS makes a formal finding of a status violation against the F-1 student
A status violation can include:

  • A gap in status
  • Working without authorization
  • Not maintaining a full courseload

Change of Status Versus Consular Processing

In both cases, H-1B status is granted to the alien.

The only difference between change of status and consular processing is the process for obtaining H-1B status.

Obtaining A New H-1B Visa Abroad

If the F-1 alien originally changed status to H-1B in the U.S., then the alien must obtain a new H-1B visa before re-entering the U.S. after a trip abroad.

Exception: Travel to Mexico or Canada for fewer than 30 days

Post-filing Issues

Portability

H-1B change of employer petitions
The employee can commence employment with the new H-1B petitioning employer upon the filing of an H-1B petition.

Admission and Extension

H-1B status granted for up to three years at a time and for a maximum of six years, with certain exceptions.

The extension petition must be filed where the alien is still in H-1B status, unless USCIS forgives a gap in status.

Exceptions to the Six-Year Period

The alien may seek H-1B status indefinitely beyond the six year period under the following situations…

  1. A labor certification (1st stage of green card process for most) or Form I-140 immigrant visa petition (2nd stage) was filed at least one year before the end of the six-year period in H-1B status
  2. The Form 140 is approved and
    a visa number for legal permanent residency is unavailable
    • The alien can start the process
      for legal permanent residency
      either before, during or after filing
      the H-1B petition.